Nuclear Power Corpn,Rep By Stn v. 1.Tn Atomic Power Employees Un

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07..01..2015

CORAM

THE HON'BLE Mr.SANJAY KISHAN KAUL, CHIEF JUSTICE and THE HON'BLE Mr.JUSTICE M.M.SUNDRESH W.A.No.190 of 2001 & W.P. No.11870 of 2001 W.A.No.190 of 2001 Nuclear Power Corporation, rep. by its Station Director, Madras Atomic Power Station, Kalpakkam, Kanchipuram District.

.. Appellant/1st Respondent Vs.

1.Tamil Nadu Atomic Power Employees Union, rep. by its General Secretary , Kalpakkam, Kanchipuram District.

2.The Assistant Labour Commissioner(C)-II, 26, Haddows Road, Chennai-6.

.. Respondents/Petitioner W.P. No.11870 of 2001 Tamil Nadeu Atomic Power Employees Union, rep. By its General Secretary , Kalpakkam, Kanchipuram District.

..Petitioner /2nd Respondent

Versus

1.Nuclear Power Corporation, rep. by its Station Director, Madras Atomic Power Station, Kalpakkam, Kanchipuram District.

2.The Assistant Labour Commissioner(C)-II, 26, Haddows Road, Chennai-6.

..Respondents Appeal in W.A.No.190 of 2001 filed under Clause 15 of Letters Patent Act against the order dated 22.12.2000 made in W.P.No.13412 of 2000 by the learned single Judge.

This Writ Petition filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus to call for the records from the 1st Respondent pertaining to the order dt.26.7.2000 and consequently direct the 1st Respondent refer the dispute covered by the notice dt.27.4.2000 for adjudication by the Industrial Tribunal at Chennai forthwith.

Petition in W.P.No. 11870 of 2001 filed under Article 226 of the Constitution of India, praying for the issuance of a writ of Mandamus, directing the first respondent to forbear from giving effect to the notice No.MAPS/CS/00100/2001/S dated 21.06.2001 proposing to change the shift pattern until the industrial dispute on the said subject is resolved either by settlement or adjudication in accordance with law.

For appellant in :: Mr.N.Jothi W.A.No.190/2001 & for 1st Respondent in W.P.No.11870/2001 For 1st respondent in :: Mr.Ajay Khose W.A.No.190/2001 & for Petitioner in W.P.No.11870/2001 COMMON JUDGMENT (Judgment of Court was made by M.M.Sundresh,J.) The first respondent in W.A.No.190 of 2001 and the petitioner in W.P.No.11870 of 2001 is the recognised Union representing the workmen of the appellant. A notice under Section 9-A of the Industrial Disputes Act was issued by the appellant proposing to change the round the clock working in three shifts. An objection was raised by the first respondent-Union to the proposed change, followed by a strike notice. As a copy of the said notice was marked to the Conciliation Officer, he initiated conciliation proceedings by calling both the parties. Conciliation ended in failure.

Consequently, by the order impugned, the appellant has refused to refer the dispute for adjudication. Challenging the said order with a consequential prayer to refer the matter for adjudication, the first respondent -Union has filed W.P. No.13412 of 2000 before this Court. The learned single Judge, after considering the entire issues raised by the parties, by an elaborate order, allowed the writ petition. Not satisfied with the decision of the learned single Judge, the present writ appeal in W.A.No.190 of 2001 has been filed. 2.

W.P.No. 11870 of 2001 is filed by the petitioner seeking a direction to the first respondent therein to forbear from giving effect to the notice No.MAPS/CS/00100/2001/S dated 21.06.2001

proposing to change the shift pattern until the industrial dispute on the said subject is resolved either by settlement or adjudication in accordance with law.

3.

As both the cases are interconnected, they have been taken up together and common order is passed. For the sake of brevity, W.A.No.190 of 2001 is taken up as a lead case and the parties arrayed thereunder are referred as such. 4.

The learned counsel appearing for the appellant in W.A.No.190 of 2001 and the first Respondent in W.P.No.11870 of 2001 submitted that in view of the notice issued under Section 9-A of the Industrial Disputes Act, the order passed on 26.07.2000 is perfectly valid in law. The proposed action did not involve any drastic change of service condition nor there is any reduction in payment of night shift allowance.

5.

Per contra, the learned counsel appearing for the first respondent-Union in W.A.No.190 of 2001 and the petitioner in W.P. No.11870 of 2001 submitted that what was sought for before the learned single Judge was a mere reference. Admittedly, there was a dispute between the parties. The respondents are entitled to reference as a matter of right. It is only an administrative action. Therefore, the order passed by the learned single Judge does not require any interference.

6.

A mere notice issued under Section 9-A of the Industrial Disputes Act would not take away the right of the first respondentUnion in seeking reference. The reference is a matter of rule unless the disputes raised is totally frivolous one on the face of it. The learned single Judge, on facts, found that the dispute raised was not frivolous. Admittedly, there is no adjudication was involved. A mere notice issued under Section 9-A of the Industrial Disputes Act cannot be termed as a decision made. The dispute raised between the parties is required to be resolved through an adjudicative forum. The entitlement of the first respondent-Union as against the justification of the appellant are matters to be decided by the Labour Court. Taking note of the above said relevant facts and applying the law governing adjudication, the learned single Judge has rightly allowed the writ petition.

7.

Thus, we do not find any reason to interfere with the well merited order passed by the learned single Judge. Accordingly, the writ appeal stands dismissed leaving open all the issues on merits to be adjudicated before the appropriate authority. No costs.

8.

In view of the order passed in the writ appeal No.190 of 2001, nothing survives for adjudication in W.P.No.11870 of 2001 and the same is also dismissed. No costs.

Sd/- Assistant Registrar Dated:21.1.15 True Copy Sub Assistant Registrar To 1.The General Secretary , Tamil Nadu Atomic Power Employees Union, Kalpakkam, Kanchipuram District.

2.The Assistant Labour Commissioner(C)-II, 26, Haddows Road, Chennai-6.

.

3. The Station Director, Nuclear Power Corporation, Madras Atomic Power Station, Kalpakkam, Kanchipuram District.

+1 cc to Mr.V.Ajay Khosi, Advocate,SR.1038 +3 cc's sto Mr.N.Jothi, Advocate,SR.622.

rsi(co) krd 28/1 W.P. No.11870 of 2001 & W.A.No.190 of 2001